B.K. question on notice of lien avoidance. I have seen many

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B.K. question on notice of lien avoidance. I have seen many B.K. cases where the Trustee fights for the Petioner and makes the entity that is claiming an interest in real estate prove their lien (B10 forms). I have seen entities not be able to prove there status as holder in due course inside a B.K.

How do you get the Trustee to fight on your behalf (require a proof of claim)on a Chapter 7 and or 13. I did a B.K. I listed my mortgage company on schedule F and disputed them. It got discharged. They called the DOJ in my 341 hearing. I told them I had never head of the people who where attempting to make a claim against my property until last year.

They are not a holder in due course pursuant to UCC 3-302 (no evidence)They are not entitle to enforce pursuant to UCC 3-301 (no evidence)My trustee said (on the record) he would require them to prove their position but never did. He wrote it up as a no asset case. I told him he could sell the house and pay off my bills if they could not prove their lien. I seen it in other cases. How do invoke that same protection in my case?

I am thinking of doing a notice of lien avoidance - they have never proved they were the holder in due course.

Hi, thanks for your question. You should hire a lawyer for specific legal advice. No attorney client relationship is created here.

Terry L. :

If the trustee takes the position that they don't have a valid lien, they would be the ones to obtain an order to that effect, and then would sell the home to pay the creditor.

Terry L. :

A debtor in chapter 7 wouldn't really want to do this, for if the debtor filed an adversary to invalidate the lien, then the trustee would then sell the property. In essence, you would be doing the trustee's job for them.

Terry L. :

Do you want the trustee to sell your home? I wouldn't worry about it, as you can always surrender the home and let the lien holder foreclose. You can stay there rent/mortgage free until it forecloses.

Terry L. :

The bankruptcy will discharge your mortgage obligation either way, so there isn't much needed to do here, if you don't want the home any more.

Terry L. :

You can always challenge the foreclosure too in foreclosure court under the same principals that they are not a holder in due course.

Terry L. :

Let me know what questions you have.

Customer:

I walked away from computer... sorry.

Customer:

I wanted to know why the B.K. trustee wasn't asking to prove claim if I gave them reason to require it.

Customer:

Reasons:

Customer:

Not holder in due course

Customer:

Certified letter from AIG saying they paid of the loans in the trust.

Customer:

I did a criminal complaint - so they abandoned their claim but was just curious why the Trustee didn't help me when clearly they helped others in their case. I wondered did it have to do with the fact that they only get paid $65 per case and they just didn't want to work. You can make an alleged lien holder prove their claim in B.K.

Customer:

I just don't wanted to know how to invoke the trustee help. Yes I wanted the Trustee to sell the house and pay off my other creditors. I would have had about $75 left over if they would have done that.

Customer:

I know to tip :)

Customer:

I did an adversary complaint before they discharged my debt but the judge wrote me back and kind of said they have to show up to fight and since the Trustee said no asset they don't have to. I am going to file a lien avoidance but wondered if 11 USC 522(f) would cover what I'm trying to do or is there another code for what I am wanting to present. What do I want to present? Them to be made to prove their lien other wise I want to avoid it as it is hendering my ability to to obtain exemption.

I will tell you that...the things you have to go through to be an Expert are quite rigorous.

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